Youthful Offenders And The Eighth Amendment Right To Rehabilitation: Limitations On The Punishment Of Juveniles

by Martin Gardner

Professor Herbert Morris has famously argued that criminal offenders possess a moral right to be punished for their offenses. This right is derived from a more fundamental natural right–inalienable and absolute—to be treated as a person. Because persons have a right to have their choices respected, when one responsibly chooses to engage in conduct prohibited by a just system of criminal law, one chooses the consequences of the violation: punishment. Non-punitive responses—most notably compulsory rehabilitative therapy—regard deviant conduct as merely symptomatic of an unhealthy status condition plaguing the offender rather than the product of a responsible moral agent. Paternalistically imposing compulsory rehabilitative regimens on morally accountable offenders disregards the offender’s right to be punished.

I have suggested elsewhere that the right to be punished may be constitutionally protected under the Cruel and Unusual Punishments Clause of the Eighth Amendment. I have also explored the extent to which juveniles might enjoy the protections of this right, while Professor Sanford Fox has raised his influential voice in arguing for this right without explicitly grounding it in the Constitution. Thus, rather than experiencing the parens patriae dispensations of traditional juvenile courts, the argument is that to the extent that older juveniles function as adults, they may be entitled to the right to be punished for their offenses rather than being subjected to the sometimes more onerous “rehabilitative” dispositions imposed by juvenile courts.

Although some social science data supports the claim that adolescents are functionally equivalent to adults in terms of cognitive ability and a few Supreme Court cases specifically identify juveniles as “persons” in light of a recent series of cases disallowing capital punishment and life sentences without parole, (LWOP), as cruel and unusual under the Eighth Amendment when applied to juveniles, the Court has now recognized that rather than enjoying a right to be punished, young people, specifically adolescents, instead uniquely possess the quite different—indeed in many ways antithetical—constitutional “right to a meaningful opportunity to be rehabilitated.” This right is based on the Court’s identification of adolescents as, among other things, singularly amenable to rehabilitation, thus designating them a categorically distinct class from adults. Specifically, as I will show, the Court’s decisions logically extend beyond LWOP sentences and strongly suggest that it is now unconstitutional to punish adolescent offenders with any sentence of imprisonment without providing for their possible rehabilitation.

The implications of this new constitutional right to rehabilitation for adolescents are far reaching, affecting both the juvenile and criminal justice systems. Indeed, one commentator has observed that the Court’s Eighth Amendment cases raise “questions about the constitutionality of any sentencing scheme that fails to take account of the . . . differences between children and adults,” especially the unique potential of youthful offenders to reform. This Article explores those questions. I will demonstrate that the emphasis on rehabilitation does not necessarily spell the demise of all punishment of youthful offenders, whether in the criminal or juvenile system. I thus reject the view of some that the Court’s recognition of the fundamental differences between adolescents and adults logically leads to the conclusion that juveniles may never be tried in adult criminal court.

To understand the potential scope of the Court’s implicit conclusion that the punishment of adolescents is unconstitutional unless a meaningful opportunity for rehabilitation is afforded, it is necessary to carefully distinguish and clarify the distinction between the conflicting concepts of punishment and rehabilitation. I therefore begin Part I by analyzing this distinction. Since the logic of the Court’s decisions impacts the punishment of adolescents in both the juvenile and criminal justice contexts, I contrast the two systems in Part II by tracing the development of the juvenile court movement from its original rehabilitative origins towards an increasingly punitive model, dispensing dispositions traditionally found only in the criminal system. In Part III, I discuss the Court’s Eighth Amendment cases from which the right to an opportunity for rehabilitation emerges, examining in Part IV this right’s implications for juveniles within the criminal justice system, showing specifically that juvenile offenders are now entitled to: (1) systematically less punishment than that imposed on adults committing the same offenses; (2) a robust individualized pre-sentencing hearing, taking into account, among other things, the offender’s amenability to rehabilitation; (3) a disposition in the juvenile system if, at the pre-sentencing hearing, the offender is deemed to be amenable to rehabilitation and the juvenile system affords the best opportunity for its realization; and (4) a sentence offering a realistic possibility for rehabilitation and parole if the offender is deemed not amenable to rehabilitation at the pre-sentencing hearing.

In Part V, I explore the ramifications of the right to a meaningful opportunity for rehabilitation for the juvenile system, concluding: (1) that rehabilitative juvenile justice systems are now constitutionally mandated; (2) that for all juveniles charged with criminal offenses, jurisdiction must now originate in juvenile court with transfer to criminal court permitted only if a juvenile court judge finds that an accused is not amenable to rehabilitation within the juvenile system; and (3) for punishment within the juvenile system, the same judicial hearing and parole release requirements applicable to criminal court punishment are now equally required. Finally, in Part VI, I show that these manifestations of the right to a meaningful opportunity for rehabilitation are not waiveable by juvenile offenders and that implementation of this right would require considerable reform of current practices in both the criminal and juvenile systems.

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